Courting a reversal

Attorney George Washington is feeling pretty confident these days. Two weeks ago, the Detroit civil rights lawyer argued before the Michigan Court of Appeals that a lower-court judge erred when tossing out a sexual harassment case against Ford Motor Co.

As Washington sees it, the appellate court was sympathetic.

In 2002, Wayne County Circuit Court Judge William J. Giovan dismissed a lawsuit that Justine Maldonado filed three years ago against her former employer, Ford, and former supervisor, Daniel Bennett (“Harassment factory,” Metro Times, June 12, 2002). Her lawsuit claims that Bennett sexually harassed her and that Ford knew about it and did nothing.

Givoan dismissed the case because Maldonado openly spoke to the media (i.e. Metro Times) about Bennett, who was convicted of indecent exposure in 1995 for exposing his penis to three women on I-275. Maldonado had also accused Bennett of exposing himself to her.

Bennett’s criminal record was expunged in 2001 and Giovan ruled that Bennett’s freeway willie-waving could not be admitted as evidence in Maldonado’s case. But Giovan never issued a gag order prohibiting Maldonado or her attorneys from discussing Bennett’s conviction. So they did.

According to Washington, Giovan’s reasoning (if you want to call it that) did not seem to persuade the appellate panel.

“The presiding judge [StephenL. Borrello] said, ‘The right to speak is fundamental. I always heard it was fundamental,’” recalls Washington.

Washington also says that the court “roasted” Ford’s attorney, Sam G. Morgan, who grumbled to the three-judge panel that Maldonado vowed to talk about Bennett’s record and the sexual harassment case no matter what Giovan ruled.

“Look, all she is doing is expressing a determination to fight. That’s not illegal, that’s admirable,” said Judge Helene N. White, according to Washington.

Morgan says Washington “should not be so confident.”

“From the comments made by the presiding judge and current Michigan law, it seems clear that Bennett’s dismissal from the lawsuit will be affirmed,” says Morgan.

Well, that might be a given, considering that the conservative Michigan Court of Appeals ruled last year that only employers — not individuals — can be sued for sexual harassment. But will the appellate court affirm Giovan’s bizarre dismissal of the case against Ford?

According to Morgan, Giovan ruled that Maldonado and her lawyers were legally prohibited from talking about Bennett’s record. He says the plaintiff has to show that the judge abused his discretion by throwing out the case.

“It is a difficult standard for the plaintiffs. I think they have a long shot,” says Morgan.

It is unknown when the appellate court will issue a decision. But it has three options: uphold Giovan’s ruling, overturn it and remand the case to him or overturn his ruling and assign it to another judge.